7 EU Enlargement: Romania and Bulgaria
| (a)
(32547)
6986/11
COM(11) 80
(b)
(32548)
6987/11
COM(11) 81
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Commission Report on progress in Romania under the Co-operation and Verification Regime
Commission Report on progress in Bulgaria under the Co-operation and Verification Regime
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| Legal base | —
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| Documents originated | 18 February 2011
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| Deposited in Parliament | 28 February 2011
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 10 March 2011
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| Previous Committee Report | None; but see (31824) 12558/10 and (31825)
12562/10: HC 428-i (2010-11), chapter 65 (8 September 2010); (31436) 7947/10 and (31437)
7948/10: HC 5-xviii (2009-10), chapter 7 (7 April 2010); (30828) 12386/09 and (30829) 12388/09: HC 19-xxvi (2008-09), chapter 22 (10 September 2009); (30347) 6405/09 and (30348) 6407/09: HC 19-xvii (2008-09), chapter 8 (13 May 2009), HC 19-xiv (2008-09), chapter 6 (22 April 2009) and HC 19-xii (2008-09), chapter 3 (25 March 2009); also see (29876) 12177/08 and (29877) 12182/08 HC 16-xxix (2007-08), chapter 2 (10 September 2008); (29431) 6150/08 and (29432) 6161/08 HC 16-xiii (2007-08), chapter 15 (27 February 2008); (28754) 11491/07 and (28768) 11489/07 HC 41-xxxii (2006-07), chapter 11 (25 July 2007) and (27865) 13347/06: HC 34-xxxviii (2005-06) chapter 3 (18 October 2006)
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| To be discussed in Council | 21 March General Affairs Council
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
7.1 The accession negotiations with Romania and Bulgaria were
concluded in December 2004 and a Treaty of Accession was signed
on 25 April 2005. The UK ratified the Treaty on 5 April 2006.
7.2 The Commission's October 2005 and May 2006 monitoring reports
identified a number of areas where further improvements were needed
in order to meet all membership requirements, and all of which
went to the heart of a properly functioning governance system
based on the effective implementation of laws by an accountable,
independent and effective judiciary and bureaucracy. The Accession
Treaty allowed for a delay until 2008, but only if the Commission
recommended that either country was "manifestly unprepared"
for membership. The Commission's final verdict was that both countries
would be in a position to take on the responsibilities of membership
by 2007.
7.3 There were, however, still significant shortcomings, particularly
on JHA issues.[37] So,
various post-accession measures were put in place, the most crucial
being the Mechanism on Cooperation and Verification (CVM) —
a process whereby, having set benchmarks on JHA issues, the Commission
works closely with both governments on steps to meet them, and
reports to the European Parliament and the Council, with the sanction
of non-recognition of judicial decisions under mutual recognition
arrangements if progress was insufficient.[38]
Accession on 1 January 2007 was now essentially a fait accompli;
however, given the range of outstanding issues and their implications
for actual and aspiring candidates, the Commission's final verdict
was debated in the European Standing Committee on 15 January 2007.[39]
7.4 Romania's benchmarks are:
— Benchmark
1 — Reform of judicial process;
— Benchmark 2 — Establishment of
an integrity agency;
— Benchmark 3 — Investigation of
high level corruption;
— Benchmark 4 — Corruption, in particular
within local government.
7.5 Bulgaria's benchmarks are:
— Benchmark
1 — Independence/ accountability of judicial system;
— Benchmark 2 — Transparency/efficiency
of judicial process;
— Benchmark 3 — Reform of the judiciary;
— Benchmark 4 — High level corruption;
— Benchmark 5 — Corruption at borders
and in local government;
— Benchmark 6 — Organised crime.
7.6 The Commission monitors progress and writes reports
every six months: interim reports at the start of the year and
main reports at mid-year. The previous Committee's consideration
of earlier reports is enumerated in the headnote, the most recent
being the Commission's main report of July 2010.
7.7 These reports are thus the latest interim reports.
As such, the Commission says, they provide a technical update
on significant developments during the last six months in both
countries, focussing on each country's response to the Commission's
recommendations, and do not contain a full assessment on progress
achieved. The July 2010 progress reports and their recommendations
thus remain the point of reference for the assessment of progress
against the benchmarks and the identification of the remaining
challenges, with respect to which the Commission will provide
its next assessment in summer 2011.
Romania
7.8 As noted in our most recent Report, [40]
the Minister for Europe (Mr David Lidington) described the last
full report on Romania as the most critical of any of those published
since the mechanism began: disappointing overall performance,
key shortcomings in political commitment to reform, especially
on the part of the Romanian parliament and Recommendations continuing
to include the need for structural adjustments of the judiciary
and "thorough reform" of the disciplinary system, and
further reforms against corruption, including in the field of
public procurement.
7.9 In his Explanatory Memorandum of 10 March 2011,
the Minister notes that during the last six months, Romania has
responded in a constructive way to the Commission recommendations
in the last full report. He highlights:
- the Small Reform Law, which, he says, will speed
up the judicial process;
- the maintenance of the National Anti-corruption
Directorate (DNA) track record for investigating high level corruption;
and
- adoption of an improved law to secure the functioning
of the National Integrity Agency (ANI).
7.10 The Minister then summarises the situation under
each benchmark as follows:
"Benchmark 1. Reform of judicial process.
The Civil and Criminal Procedure Codes were adopted by parliament
on 22 June and promulgated by the President on 30 June. However,
further work is necessary before all four codes enter into force,
including on the implementing laws which have been sent to parliament
for debate. The report notes that progress on the recommendation
to conduct an impact assessment for the four codes has been minimal.
The "Small Reforms Law" to be debated by parliament
should advance the implementation of some reforms included in
the procedural codes. It should also progress the recommendation
to streamline the procedure for appeals. Staffing of the judiciary
remains a concern. Vacancies have reduced slightly but there are
questions as to whether recently appointed magistrates who have
not graduated through the National Institute of Magistracy (NIM)
are as well prepared as NIM graduated colleagues. The response
to the 2009 recommendations to transfer vacancies to higher priority
areas has been mixed. There has been progress on structural reforms
to maximise the efficiency of existing personnel. The report urges
the review of the geographic distribution of personnel and the
possibility of a certain level of specialisation of judges.
"The Superior Council of Magistracy (SCM) has
taken some steps towards more transparency by publishing decisions
online. However, concerns remain over transparency, objectivity
and thoroughness of interviews to promote judges to the High Court
of Cassation and Justice (HCCJ). Concerns also remain over the
handling of disciplinary investigations and decisions reached
by the SCM.
"Benchmark 2: Establishment of an
integrity agency: On 14 April the Constitutional Court found
substantial and significant parts of law 144/2007 on the National
Integrity Agency (ANI) unconstitutional (although the conclusion
was not unanimous). As a result, the government put forward a
new law on the ANI, which was adopted on 12 May. This was widely
criticised by practitioners and civil society, and the President
subsequently decided not to promulgate the law. However, on 30
June, the Senate (the upper house of Romania's Parliament) adopted
the law again with only minor amendments. As a result, the control
of assets, a fundamental element in the ANI's original competence,
has been lost. The ANI, which has had a good track record in directly
taking cases of unjustified wealth to court, has now been deprived
of this ability, having to refer them firstly to the tax authorities
or prosecutors. This important deterrent and sanction for corruption
has therefore been lost. The new law includes a host of other
amendments which weaken the effectiveness of the ANI's legal framework.
The report notes that up until the passing of the new law, the
ANI had been able to consolidate its institutional base, consolidate
improvements in staffing and its operational track record, and
therefore notes that it is imperative that the new law is amended.
The Commission's report is highly critical of the Senate's proposed
law, saying that it "breaches commitments taken by Romania
upon accession." The ANI had previously strengthened case
management processes, including monitoring the timely follow up
by judicial and disciplinary bodies of cases submitted.
"Benchmark 3: Investigation of high level
corruption: The National Anti-corruption
Directorate (DNA) has maintained its stable and convincing track
record of investigations into allegations of high-level corruption
and a significant number of cases were sent to court. Overall,
encouraging conviction rates have been achieved. The courts have
demonstrated an increasing tendency to apply more severe sentencing,
including imprisonment, although this trend has not been followed
through at the final judgement stage. Concerns remain regarding
the length of the trial phase in high-level corruption cases.
The recommendation to apply the procedure for allowing criminal
investigations of parliamentarians has only partially been fulfilled.
On the positive side, the co-operation between the DNA and other
relevant institutions is considered to be effective and challenges
to the constitutionality of the DNA's legislature have so far
been rejected by the Constitutional Court. The report notes that
additional in-service training courses on fighting corruption
have been scheduled. The recommendation to allow the criminal
court to resolve illegality exceptions and to limit the application
of suspended sentences is also being addressed. Further work is
needed on the individualisation of penalties for corruption.
"Benchmark 4: Further measures against corruption
including in local government: Some steps
have been taken to strengthen co-ordination of the National Anti-Corruption
Strategy for Vulnerable Sectors and for Local Public Administration.
This strategy is now in its final months. However, despite a few
additional measures proposed, the enhanced co-ordination does
not so far appear to have developed to the stage of delivering
better identification of vulnerable activities or corruption risks,
nor mitigating actions. The report also notes that the real impact
of individual actions remain unclear, which makes it difficult
to ascertain which measures are actually working or need further
attention. Efforts have been made to step up prevention measures
in certain sectors. In the wider public administration, the Central
Unit of Public Administration Reform (CUPAR) of the Ministry of
Administration and Interior (MAI) has developed a guide on simplification
of procedures and facilitated external expertise to identify procedures
for the simplification in several public agencies. The Ministry
of Education, which has identified a systemic weaknesses arising
from specific corruption cases, is procuring an information system
aimed at reducing corruption in the diploma system. However, overall,
prevention measures need to be intensified across public institutions.
There is a need to strengthen co-operation between the Fraud Investigation
Service of the police and prosecutors in fraud cases. MAI has
secured financing for the National Integrity Agency to consolidate
anti-corruption efforts, and steps by the General Prosecutor to
tackle low and medium-level corruption are beginning to deliver
results. Concerns remain on public procurement, where the report
describes a number of weaknesses in practice and the institutional
structure. Conflict of interest legislation is insufficient and
complex. Competent authorities demonstrate only limited activity
aimed at preventing and detecting conflict of interest."
7.11 Over the next six months, the report recommends
that Romania should: focus on preparing for the implementation
of the four codes; commission a comprehensive review on the functioning
of the judicial system to ensure the speed, quality and consistency
of the judicial process; and do more work on measures to strengthen
anti-corruption policy.
Bulgaria
7.12 The most recent full report on Bulgaria was,
by contrast, much more positive, with the Commission noting the
establishing of a strong reform momentum, a strong political will
to achieve a deep and lasting reform of the judiciary, the adoption
of important reforms of its penal procedures and the strengthening
of the prosecution to deal with fraud and organised crime, with
the latter being actively tackled for the first time since the
inception of the CVM.
7.13 The Commission nonetheless concluded that report
with a further 11 recommendations covering Reform of the Judiciary,
the Fight against Organised Crime and the Fight against Corruption,
and called for sustained commitment by Bulgaria, the Commission
and other Member States.
7.14 In his Explanatory Memorandum, the Minister
summarises developments over the last six months under each benchmark
as follows:
"Benchmark 1:
Independence/accountability of the Judicial system: In
this period, the Bulgarian parliament has adopted important amendments
to the Judicial Systems Act. Bulgaria has also taken steps to
improve the efficiency of the pre-trial process by merging the
Criminal Police Department with the Department of Pre-Trial Proceedings.
It has also continued to tackle organised crime gangs through
police raids and arrests. However, the report notes that these
activities have led to few indictments.
"Benchmark 2: Transparency /efficiency of
judicial process: In response to the Commission's
recommendations, the Bulgarian Parliament adopted amendments
to the Judicial System Act (JSA) which strengthens the role of
the Supreme Judicial Council (SJC) by introducing provisions aimed
at enhancing transparency and protecting against conflicts of
interest in the SJC's decision making process. The report mentions
that there has been public concern raised about the accountability
and transparency of senior judicial appointments. The recent amendments
to the JSA require absolute commitment by the SJC to guarantee
the quality and independence of appointment.
"Benchmark 3: Reform of the Judiciary:
The JSA introduced new procedures and powers for the appointment
and appraisal of Magistrates and supplementary powers to evaluate
the workload of the courts and introduced a separation between
appraisals of prosecutor and judges and a decentralised appraisal
system.
"Benchmark 4: High
level corruption: Two important verdicts have been pronounced
in cases related to high-level corruption cases against two former
Ministers, during the last six months. The same period has also
seen a number of acquittals in cases involving conflicts of interest,
fraud and organised crime, which have been appealed by the prosecution
in the public interest.
"Benchmark 5: Corruption at borders and in
local government: The Bulgarian Customs
Agency has continued its structural reform, which has seen an
assessment of staffing, resulting in a number of redundancies
as part the fight against internal corruption. It is important
these reforms continue to strengthen the independence and efficiency
of its investigations.
"Benchmark 6: Organised Crime: The
Bulgarian Parliament recently adopted important legislation
to establish a special criminal court and special prosecutor's
office, which is expected to be operational by August this year.
These new structures are designed to speed up the prosecution
process and improve the celerity and consistency of organised
crime cases. However, efforts need to be made across the judiciary
to introduce improved professional practices with regard to economic
and financial crime. Bulgaria has also drafted the Illegal Assets
Forfeiture Act, and should now ensure that the final version includes
'non-conviction based confiscation'."
The Government's view
7.15 The Minister "fully endorses" these
reports, which he says are "a fair and objective assessment
of progress in both countries."
7.16 He notes that
"A rigorous, transparent and objective monitoring
mechanism remains essential to support reform in Romania and Bulgaria,
as well as to ensuring the integrity of EU enlargement policy."
7.17 The Minister also endorses the Commission's
emphasis on the importance in both countries of there being a
broad based consensus and political will to undertake these reforms
and ensure they deliver tangible and lasting results.
7.18 The Minister then welcomes the findings that
Romania has responded to the Commission's recommendations constructively
and re-invigorated the reform process. He particularly welcomes
the adoption of a revised law to secure the independent functioning
of the National Integrity Agency (ANI). He then continues as follows:
"We consider that close cooperation between
judicial and political actors, particularly Parliament, will be
of continued importance to ensure that the momentum is maintained."
7.19 The Minister also supports the Commission's
recommendations on where Romania should focus its efforts in the
coming six months:
"Romania must prioritise the launch of an independent
review of the judicial system to support the implementation of
further measures to improve the effectiveness of the judicial
process. Romania should also focus on the implementation of the
new civil and criminal codes; reform of the disciplinary system
for magistrates; improving the celerity of high-level corruption
trials; and strengthening anti-corruption policy"
7.20 Turning to the report on Bulgaria, the Minister
notes the finding that Bulgaria has maintained its commitment
to continue to implement its judicial reform strategy:
"The Government welcomes this sustained focus
on the reform process and particularly adoption of amendments
to the Judicial System Act; amendments to the Law on Conflict
of Interests; and continuing work on customs reform. Further actions
need to be initiated to sustain this momentum, particularly relating
to the reform of the judicial system and of the police. Bulgaria
should focus on the adoption of an effective law on asset forfeiture
and on improving the effectiveness of its judicial system in order
to address the continuing low rate of convictions for corruption
and organised crime."
7.21 The Minister then says that he continues to
support Romania and Bulgaria in their efforts to deliver these
essential reforms, both within the EU and bilaterally, and agrees
with the Commission "that the mechanism should be regarded
in its entirety rather than as individual benchmarks and that
it must remain in place until all of the benchmarks have been
met."
7.22 Finally, the Minister notes that these interim
reports are not subject to Ministerial discussion and that he
expects only brief Conclusions to be adopted at the 21 March General
Affairs Council, welcoming the Commission's analysis and recommendations
and encouraging Bulgaria and Romania to sustain their reform efforts
over the coming months.
Conclusion
7.23 The Commission Reports, which we now clear,
and the Minister's comments speak for themselves.
7.24 As the previous Committee noted on a number
of previous occasions, the concern is not to conduct a post-mortem
on Bulgaria and Romania's accession but, rather, to ensure that
the lessons that emerge from it are incorporated into the way
in which subsequent accessions are handled, and specifically that
of Croatia. They recalled the Commission's earlier judgement that
both Bulgaria and Romania needed to demonstrate three things:
— "an
autonomously functioning, stable judiciary, which is able to detect
and sanction conflicts of interests, corruption and organised
crime and preserve the rule of law";
— "concrete cases of indictments,
trials and convictions regarding high-level corruption and organised
crime";
— "the legal system is capable
of implementing the laws in an independent and efficient way";
and took the view that Croatia should be able
to demonstrate persuasively that it had reached this position
before accession.
7.25 This was further rehearsed in our Report
on the last full assessments of Romania's and Bulgaria's progress,
when we noted that we endorsed our predecessor's position.[41]
We accordingly look forward to hearing from the Minister about
the Commission's latest progress report on Croatia.
7.26 For now, it is plain that both Romania and
Bulgaria have yet to reach this position, four years after accession.
7.27 We now clear the documents.
37 For details, see previous Reports enumerated in
the headnote to this chapter. Back
38
Commission Decisions 2006/928/EC and 2006/929/EC of 13 December
2006 establishing a mechanism for cooperation and verification
of progress in Bulgaria and Romania to address specific benchmarks
in the areas of judicial reform and the fight against corruption
and organised crime (OJ L 354, 14.12.2006, p. 56 and 58; see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:354:0056:0057:EN:PDF
and http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:354:0058:0060:EN:PDF). Back
39
Stg Co Deb, European Standing
Committee, 15 January 2007, cols. 3-28. Back
40
See (31824) 12558/10 and (31825) 12562/10: HC 428-i (2010-11),
chapter 65 (8 September 2010). Back
41
Seeheadnote:(31824)12558/10and(31825)and12562/10:HC428-i(2010-11),chapter65(8September2010). Back
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